MM v FF (Maintenance: Scope of EU Withdrawal Agreement) [2026] EWFC 1

Judgment date: 13 January 2026

https://caselaw.nationalarchives.gov.uk/ewfc/2026/1

MacDonald J. Appeal against District Judge Devlin’s dismissal of an application for child maintenance. MacDonald J examined the scope of the legal framework governing the application of Council Regulation (EC) No. 4/2009, as well as the importance of rigorous case management and appropriate judicial conduct.

The Regulation

Council Regulation (EC) No. 4/2009 (‘the Maintenance Regulation’) centres around jurisdiction, applicable law, recognition and enforcement of decisions and cooperation regarding maintenance obligations; [2].

Article 56(1)(c) of the Regulation provides for an application to be made for the ‘establishment of a decision in the requested Member State where there is no existing decision’; [12].

The Maintenance Regulation had direct effect and applied to all EU Member States from 18 June 2011; [34]. Details regarding the scope, jurisdiction and application can be found at [34]–[40].

Introduction

An appeal on four grounds by M against a decision of District Judge Devlin to dismiss an application for child maintenance for the parties’ 18-year-old child; [1], [33]. The appeal raised the questions: (1) whether the mother’s application fell within the scope of the legal framework governing the application of Council Regulation (EC) No. 4/2009; and (2) if it did, whether the judge was justified in dismissing M’s application for breach of case management directions without establishing its substantive merits; [2]. If the court found that the mother’s application was properly brought, its merits would be determined at a later hearing; [3].

F argued that it was inappropriate to pursue an appeal that was academically interesting but of little wider utility; [3]. MacDonald J concluded that this criticism was ‘not fair or justified’; [3].

MacDonald J noted that the first instance judge, after having asked M to leave the hearing, had made adverse comments about her which risked the ‘appearance of bias’; [7]. M did not pursue a ground of appeal regarding this; [7].

Background

Following a brief relationship, the parties had no contact, and M raised their child in the Republic of Ireland; [11]. F asserted that he had no knowledge of the child’s existence until 2019; [11]. M then initiated a cross-border request via the Irish Central Authority under Art 56(1)(c), seeking a first child maintenance order through the English court of £50 per week, with arrears backdated to birth; [12]. It was treated as an application under Schedule 1 of the Children Act 1989; [13].

F failed to attend multiple hearings, labelling M a ‘fraudster’ and failing to comply with an order requiring him to undertake DNA testing; [14], [15]. M also failed to attend multiple hearings; [14], [15]. Proceedings were hampered by considerable delay, detailed at [13]–[25].

Regarding the 2025 hearing, MacDonald J noted how the judge:

• did not hear from F or from M by way of reply;
• refused M’s application to adjourn the final hearing;
• did not engage with her application for a transparency order; and
• offered ‘very limited reasons’ for dismissing M’s application for a maintenance order; [27].

MacDonald J further noted the inappropriate post-hearing conversation the judge had with F after M had left; [30].

The first instance judge dismissed M’s application, firstly because she failed to file and serve evidence in support of her application and secondly because Article 67 of the agreement on the UK withdrawal from the EU restricts recognition and enforcement to proceedings instituted before the transition period’s end, meaning that no valid application could exist under Article 56 because there was no existing maintenance decision; [28].

Relevant law

MacDonald J noted that when M’s proceedings were commenced, the UK was not bound by the 2007 Hague Convention on Child Support and Other Forms of Family Maintenance; [41]. The court was therefore entitled to apply domestic law, pursuant to Article 56(4) of the Maintenance Regulation; [41].

The domestic rules for claims brought under the Maintenance Regulation are provided for under the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484), as amended by the International Recovery of Maintenance (Hague Convention 2007 etc) Regulations 2012, as well as FPR Part 34; [42]. The relevant provisions are provided in Schedule 1, Part 5, which can be read at [42].

The European Union (Withdrawal) Act 2018 made provision for the repeal of the European Communities Act 1972, as well as for the retention of relevant EU law, and provided for an implementation period; [44]. Parliament consequently promulgated the Jurisdiction (Family) (Amendment etc) (EU Exit) Regulations 2019, which revoked the Maintenance Regulation apart from proceedings or applications under it that had commenced before the UK’s ‘exit day’ on 31 January 2020; [45].

The UK and EU’s Withdrawal Agreement established a transition period beginning on 31 January 2020 and ending 31 December 2020, with the effect that European Union law continued to apply as if the UK was still a Member State; [46].

The Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2020 amended Part 4 of the Jurisdiction and Judgments (Family) (Amendment etc) (EU Exit) Regulations 2019 to the effect that its revocation of the Maintenance Regulation excluding proceedings initiated before 31 January 2020 no longer applied; [48].

Case management orders

MacDonald J considered both the overriding objective in case management proceedings, detailed in FPR 1.1, and the non-exhaustive list of the court’s case management powers, in FPR Part 4; [50].

Considering the relevant case law, MacDonald J noted the importance of compliance with case management orders, and of the need for measured judicial responses to non-compliance; [52]–[54].

The instant case

M’s grounds appeal were:

1. The judge was wrong to conclude that M’s application under Schedule 1 CA 1989 was made in September 2024.
2. The judge was wrong to conclude that M failed to comply with two previous orders.
3. The judge erred in his analysis of the Withdrawal Agreement between the EU and the UK.
4. The judge failed to deal with the application for permission to disclose details of the proceedings; [33].

MacDonald J was satisfied that the appeal should be allowed on Grounds 1, 2 and 3 and did not consider it necessary to deal with Ground 4; [56].

With respect to Ground 1, MacDonald J found that 17 September 2019 was the correct date of the Schedule 1 CA 1989 application, not September 2024; [57].

Regarding Ground 3, M had submitted that her application was governed by the Maintenance Regulation. F had submitted that, whilst Article 67 of the Withdrawal Agreement retained the jurisdiction under Article 3(a) of the Maintenance Regulation, Article 67 did not preserve the power to grant a new maintenance decision under Article 56(1)(c) of the Maintenance Regulation beyond 31 December 2020; [66].

MacDonald J rejected F’s position, concluding that ‘[W]hen Art 67 is read as a whole’ it ‘saves each of the core functions of the Maintenance Regulation’ and that therefore, in line with Lord Leggatt’s obiter comments in Potanina v Potanin [2024] UKSC 3 at [102], the Maintenance Regulation remained applicable to proceedings initiated before 11 pm on 31 December 2020; [72]. The first instance judge therefore erred in his acceptance of F’s submissions on this point; [67]. More substantial detail of his reasoning can be read at [58]–[77].

With respect to Ground 2, MacDonald J concluded that the judge’s decision to dismiss M’s application to establish a maintenance decision for failure to comply with the case management directions of the court was wrong; [88]. This decision rested on three observations:

1. The judge did not factor in F’s defaults, allocating full responsibility for the delays to M.
2. The judge’s brief reasons did not indicate that the key factors had been fully considered.
3. It was not clear that the previous orders had put M on notice that her application would be dismissed if there was non-compliance; she had only been warned about adverse inferences; [85]–[87]. She had in fact substantially complied.

Conclusion

MacDonald J allowed the appeal on Grounds 1–3. He emphasised that ‘[W]ith respect to rigorous case management, the obligations on the domestic court regarding timely decision making and the avoidance of delay’ were foremost priorities; [93.v].